Archive for December, 2010

Determining the Best Interests of the Child

Tuesday, December 28th, 2010

When parents dispute custody, courts frequently order custody evaluation. This frequently involves the appointment of a guardian ad litem (GAL), a mental health professional or a lawyer, who, for the purposes of the pending litigation, investigates and uses his or her own judgment in determining the best interest of the child. His or her nonbinding report carries great weight with the judge who must make the final decision.

Depending on court, the jurisdiction and the circumstances of the case, judges use GALs in disputed custody and visitation cases.

The evaluator assesses the rapport a child has with each parent, and a GAL may examine the way both parents and a child get along. An evaluator may visit the home of each parent, and he or she may contact teachers, doctors, and baby-sitters.

Sometimes parents resent a GAL because a custody evaluation can be very invasive, but it is wise to cooperate with the GAL.

A custody evaluator is neutral and does not take sides. He or she is throwing a cold eye on the quality of a parent-child relationship.

A Friction Point in Custody and Visitation

Monday, December 20th, 2010

When physical custody is split, very often the mother is the custodial parent and the father is the noncustodial parent who has visitation rights that are often spelled out in a parenting plan.

Visitation forces the former married spouses in contact, particularly when the noncustodial parent picks up and returns a child. And very often during these moments of contact, friction between the former spouses becomes explosive, and the former partners renew the battle, often in the presence of their children.

Visitation demands that both parents rise to the occasion. No parenting plan can anticipate every contingency that happens in the real world. That means that when Dad is a few minutes late returning the children Mom does not get on the telephone with her lawyer to make an issue of it. It means that if Dad has to work unexpectedly he does not wait until the last moment to tell Mom and the children that other arrangements have to be made.

Custody does not mean that Mom owns the child to the exclusion of Dad, and child support is not payment for the privilege of visiting a child. Both parents, the custodial and the noncustodial, are still parents to a child who loves them both indivisibly.

Appearance and Behavior Matter - Going to Court

Monday, December 13th, 2010

In the last twenty years, America has become a very “dressed down” place. The standards about what is considered acceptable dress for public appearances are much more relaxed and informal than a generation ago.

A court appearance, however, is not a place to go casual. Judges are only human, and they cannot help but notice the dress and behavior of parties who appear before them.

Whether it is a divorce trial or an appearance in court in connection with a modification of custody or visitation, a conservative, neat appearance goes miles in the direction of a good first impression. For men this means coats and ties; for women, a dress or skirt or pants suit. T-shirts, jeans, jackets with the sleeves ripped off – all send out a message that judges do not appreciate.

Good court behavior is restrained and courteous.

No one should ever interrupt the judge when he or she is speaking. In court, the judge gives the parties permission to speak. No one should speak to the judge in the second person, that is, refer to him or her as “you.” A judge is addressed as “your honor.” In court, everyone speaks in turn and no one should ever interrupt someone who is speaking or make faces or display emotion when the opposing counsel is speaking, no matter what the opposing party is saying. No one should ever raise his or her voice or shout at an estranged spouse or his or her legal counsel.

Needless to say, everyone should appear in court a little ahead of the scheduled time. And everyone should always tell the truth.

There Must be Grounds

Wednesday, December 8th, 2010

Some people become confused about the difference between grounds and fault. In divorce actions, there must be grounds for divorce. Grounds are the legal reason a party or the parties are asking the court to end the marriage. In some, depending upon the claim, the grounds are fault, but in most cases today, the grounds are no fault.

Some jurisdictions have abolished fault divorce, but in those states that offer fault divorce, the reasons include adultery, deviant sexual conduct, extreme cruelty or cruel and inhuman treatment, habitual drunkenness, mental illness, sexual desertion, and drug addiction. Some states recognize some of these fault grounds; some recognize all of them.

These terms have different shades of means and interpretations depending upon the jurisdiction.

About 30 of the jurisdictions offer fault as well as no-fault divorce.

No-fault grounds normally include physical separation, usually separate habitats, not merely separate bedrooms from six months to three years; irreconcilable difference, or incompatibility of temperament. No-fault actions allege that the marriage is “irretrievably broken down,” a term which did not exist in the literature of divorce prior to the onset of no-fault divorce in the 1970s.

Divorces may be contested, when one party disputes the allegations, and uncontested, when the parties present an agreement for approval of the court.